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In digital advertising, keyword-based targeting has become a widespread marketing method that significantly impacts the visibility of businesses. Negative keyword matching, on the other hand, prevents ads from being displayed when certain words are searched for, and in some cases, may be used as part of a business's competitive strategy. The legal nature of this method is important from both competition law and trademark law perspectives.
1. Negative Keyword Matching
Negative matching is a setting that prevents an ad from
appearing when certain brands or keywords are searched for on
platforms such as Google Ads. When this practice is implemented
through an agreement between competitors, it may give rise to
different legal consequences.
2. Assessment From a Competition Law Perspective
The Competition Authority ("Authority") accepts that the purpose of negative keyword application is to serve as a tool for advertisers to prevent their ads from appearing in non-business-related searches on search engines in line with their own strategies. However, the Authority considers that competitors adding each other's brand names to negative keywords goes beyond this purpose and effectively divides the advertising space among businesses, thereby undermining the competitive nature of search results by reducing advertising diversity. This practice weakens the visibility of undertakings that are new to the market or have low brand recognition, particularly those that are not parties to such agreements.
The Board's decisions dated November 25, 2021, numbered 21-57/789-3891 clearly stated that the effects of the negative matching agreement resulted in a situation highly similar to competitors tacitly sharing markets or customers among themselves.
In another decision2, the Board assessed whether four undertakings engaged in the purchase and sale of second-hand passenger vehicles via online platforms had entered into a so-called "gentlemen's agreement" to add each other's brand names to negative keyword lists under broad match, phrase match, and exact match types in Google search-based advertising. The Board concluded that such conduct constituted a violation of Article 4 of Law No. 4054 on the Protection of Competition.
3. Assessment from a Trademark Law Perspective
The use of a brand name on the internet is directly related to the protection of trademark rights under Article 7 of the Industrial Property Law No. 6769 ("IPL"). Pursuant to the IPL, the use of signs identical or similar to a trademark in the form of a domain name, redirect code, or keyword without the trademark owner's consent and in a manner creating commercial effect may be prohibited.
It is accepted that digital advertising and keyword usage can produce different results from traditional forms of trademark usage due to technological developments. In this context, in disputes regarding keyword advertising, courts closely examine whether the trademark is actually used as a keyword for advertising purposes. In recent decisions of the Court of Cassation, it was held that no trademark infringement occurred where the defendant's website appeared in search results due to broad keywords rather than the deliberate use of the relevant trademark as a keyword, and trademark infringement claims were therefore rejected3.
The plaintiff's claim in an exemplary case that the defendant must perform negative matching to prevent infringement of the trademark right/prevent the trademark from being used in a manner that would have commercial impact was not upheld by the court4.
4. Conclusion
Negative keyword agreements restrict competition on online platforms, and Competition Authority decisions highlight that such agreements, particularly those targeting Google text ads, lead to a "decrease in advertising diversity in the search-based online advertising market" and "eliminate competition for advertising space." The evaluation of negative keyword additions-which do not constitute a legal requirement for the prevention of trademark infringement-and the necessity of conducting a legal impact analysis when developing digital advertising strategies are therefore of critical importance.
Footnotes
1 Rekabet Kurulu'nun 25.11.2021 tarihli ve 21-57/789-389 sayılı kararı, https://www.rekabet.gov.tr/Karar?kararId=90d45d88-a8ae-4f40-9ff6-888581a2a0b6
2 Rekabet Kurulu'nun 13.07.2023 tarih 23-31/589-199 sayılı kararı, https://www.rekabet.gov.tr/Karar?kararId=e8d3c884-4d34-4374-bcd3-683c8be86d95
3 Yargıtay 11. Hukuk Dairesi, E. 2023/922 K. 2024/4336 T. 27.05.2024; Yargıtay 11. Hukuk Dairesi, E. 2023/2722 K. 2024/4977 T. 12.06.2024 https://www.rekabet.gov.tr/Karar?kararId=90d45d88-a8ae-4f40-9ff6-888581a2a0b6
4 Yargıtay 11. Hukuk Dairesi, E. 2024/385 K. 2024/8637 T. 04.12.2024
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